Abe A., Matter of

CourtNew York Court of Appeals
Writing for the CourtFUCHSBERG; COOKE, C. J., and JASEN, JONES, WACHTLER and MEYER, JJ., concur with FUCHSBERG; GABRIELLI
Citation56 N.Y.2d 288,437 N.E.2d 265,452 N.Y.S.2d 6
Decision Date17 June 1982
Parties, 437 N.E.2d 265 In the Matter of an Investigation into the Death of ABE A. JON L., Respondent; DISTRICT ATTORNEY, NEW YORK COUNTY, Appellant.

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452 N.Y.S.2d 6
56 N.Y.2d 288, 437 N.E.2d 265
In the Matter of an Investigation into the Death of ABE A.
JON L., Respondent;
DISTRICT ATTORNEY, NEW YORK COUNTY, Appellant.
Court of Appeals of New York.
June 17, 1982.

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Robert M. Morgenthau, Dist. Atty., New York City (Robert M. Pitler and Amyjane Rettew, New York City, of counsel), appellant pro se.

Lawrence Iason, Robert Kasanof and Howard E. Heiss, New York City, for respondent.

OPINION OF THE COURT

FUCHSBERG, Judge.

One of the greatest contributions of American law may be the protection it affords the individual against the power of the government itself. However, the values this bespeaks often require a delicate balancing of the individual interest in privacy and dignity against circumstances which may call for intrusion by organized society. In this context, we now are called upon to determine the extremely sensitive issue of whether a suspect in a homicide investigation may be compelled, pursuant to court order, to supply the People with corporeal evidence, in this case in the form of a sample of his blood for scientific analysis.

The question has yielded diverse opinions in the lower courts of this State (compare, e.g., People v. Vega, 51 A.D.2d 33, 379 N.Y.S.2d 419; Matter of Alphonso C. 50 A.D.2d 97, 376 N.Y.S.2d 126, app. dsmd. 38 N.Y.2d 923, 382 N.Y.S.2d 980, 346 N.E.2d 819; and Matter of Mackell v. Palermo, 59 Misc.2d 760, 300 N.Y.S.2d 459, with Matter of District Attorney of Kings County v. Angelo G., 48 A.D.2d 576, 371 N.Y.S.2d 127, app. dsmd. 38 N.Y.2d 923, 382 N.Y.S.2d 981, 346 N.E.2d 820; People v. McClain, 88 Misc.2d 693, 389 N.Y.S.2d 976; People v. Mineo, 85 Misc.2d 919, 381 N.Y.S.2d 179; and Matter of Merola v. Fico, 81 Misc.2d 206, 365 N.Y.S.2d 743; cf. People v. Middleton, 54 N.Y.2d 42, 444 N.Y.S.2d 581, 429 N.E.2d 100 ). Not unexpectedly, it has troubled commentators as well (see, e.g., Note, Detention to Obtain Physical Evidence Without Probable Cause, 72 Col.L.Rev. 712; Note, Constitutional Limitations on the Taking of Body Evidence, 78 Yale L.J. 1074).

It is in this perspective that, for the reasons which follow, we hold a court order to obtain a blood sample of a suspect may issue provided the People establish (1) probable cause to believe the suspect has committed the crime, (2) a "clear indication" that relevant material evidence will be found, and (3) the method used to secure it is safe and reliable. In addition, the issuing court must weigh the seriousness of the crime, the importance of the evidence to the investigation and the unavailability of less intrusive means of obtaining it, on the one hand, against concern for the suspect's constitutional right to be free from bodily intrusion on the other. Only if this stringent standard is met, as we conclude it was here, may the intrusion be sustained.

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The proceedings in which we apply these principles are the aftermath of the discovery on January 16, 1980 that Abe A., 1 business partner of Jon L., respondent on this appeal, had been bludgeoned to death in his Manhattan apartment. There was dramatic evidence of a violent struggle. His head contained multiple lacerations, his face was severely contused, his larynx crushed. Blood was spattered throughout the apartment and five teeth, missing from the decedent's mouth, were on the floor. Yet, there were no signs of a forced entry. Abe A. had last been seen alive in the early evening of the previous day when an attendant saw him park his car in the building's garage; the car was still there when the body was found.

Entry of the apartment had been effected after Jon L., who claimed that he had become concerned when his partner had not arrived to keep a business appointment that morning, after receiving no answer on attempting to telephone Abe A. at home and learning that Abe A.'s car was still in the garage, called the police. After coming on the scene, an investigating detective who met Jon L. and the deceased's son-in-law there observed that Jon L. had abrasions on his face and swellings and bruises on both hands, one of which bore tooth marks as well. The officer was struck by the fact that these were just the kind of injuries Abe A.'s assailant would have been likely to have received in the encounter which preceded the death. But inquiry of Jon L. only elicited the statement that he had sustained them while fending off an unsuccessful "mugging" robbery in the passageway leading to a busy subway station during the 4:30 p. m. "rush hour" on the previous day, an episode which, though allegedly causing him to be rendered unconscious for about an hour, he did not report to the police. The wristwatch for which the robber initially had lunged had not been taken. Neither a survey made that day among passengers who had traversed the same area at the approximate time when Jon L. said he was assaulted nor interrogation of a transit police department officer who had patrolled the passageway during that period brought any corroboration.

Thereafter, when analysis of the blood found in the murdered man's apartment revealed it was of two types, one matching that of the deceased and the other a relatively rare one which was to be found in less than 1% of the population, the District Attorney requested Jon L. to voluntarily submit to the taking of blood samples for a blood-grouping test from which its type would be ascertained. Jon L. having persistently refused to comply, the District Attorney, reciting the afore-mentioned facts, and on notice to Jon L., moved in Supreme Court, New York County, for an order to compel him to do so.

At Criminal Term of that court, the Justice presiding having expressly found that "there is probable cause to believe that A.A. was murdered and that J.L. is guilty of that murder", that the evidence sought "clearly" is probative and that the intrusion would be "trifling", granted the application. He also cautioned that the blood must "be drawn in the minimum amount necessary to permit proper analysis * * * by a medical doctor in a medical environment * * * in a manner involving the least risk of trauma or pain". The order he entered on this decision specified that the extraction of the blood take place at Bellevue, a city hospital, in the presence of a police detective charged with the duty of transporting it to the serology section of the New York City Medical Examiner's office for analysis. It also provided for the sealing of the file in this matter.

Under New York law, there is no statutory authorization for direct appellate review of such an order (see Matter of Alphonso C. 38 N.Y.2d 923, 382 N.Y.S.2d 980, 346 N.E.2d 819, supra ). The substantive question at stake nevertheless entered upon the appellate track when, Jon L. having failed to comply with the order, the People moved, pursuant to section 750 of our Judiciary Law, to punish him for willful

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disobedience of the "lawful mandate of the Court". Though pronouncing him guilty of criminal contempt and imposing a sentence of 30 days' imprisonment, the resulting order stayed execution of the punitive action pending appellate review, with the further proviso that, if it were upheld, Jon L. could purge himself by complying with the underlying direction.

This eventuality did not occur. Instead, a divided Appellate Division reversed the contempt order and, concomitantly, dismissed the order directing the giving of blood as academic (81 A.D.2d 362, 440 N.Y.S.2d 928). The majority, without challenging the findings concerning probable cause or the probative quality of what the blood test would disclose, nonetheless was of the view that, because Jon L. had not been formally charged with any criminal offense, much less arrested, at the time the underlying order was made, it ran counter to Fourth Amendment protections. On the People's appeal to this court, we now reverse.

Preliminarily, we examine Criminal Term's authority to compel production of the blood. In this connection, we note that, while in many States statutes or rules authorize their courts to compel a person whose status is no more than that of a suspect to supply nontestimonial evidence (e.g., 5A Ariz.Rev.Stat.Ann., § 13-3905; Col.Rules of Crim.Pro., Rule § 41.1; 4 Idaho Code, § 19-625; N.C.Gen.Stat., § 15A-271 et seq.; Utah Code Ann., § 77-8-1; see ALI Model Code of Prearraignment Procedure, App. VIII), our Criminal Procedure Law does not. And, absent express authorization, we have not favored importing such power by implication (People v. Gersewitz, 294 N.Y. 163, 167, 61 N.E.2d 427, cert. den. 326 U.S. 687, 66 S.Ct. 89, 90 L.Ed. 404; People ex rel. Hirschberg v. Orange County Ct., 271 N.Y....

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185 practice notes
  • Bryant v. Thomas, 16 Civ. 1330
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • August 3, 2017
    ...Post–Robinson New York State decisions, including from the New York Court of Appeals itself, indicate otherwise. See Matter of Abe A., 56 N.Y.2d 288, 299 n.4, 452 N.Y.S.2d 6, 437 N.E.2d 265 (1982) (citing Robinson as support without much elaboration); People v. Macedonio, 42 N.Y.2d 944, 397......
  • State v. Grant, No. 18005.
    • United States
    • Supreme Court of Connecticut
    • April 22, 2008
    ...must be based on probable cause under Schmerber); Turner v. State, 726 So.2d 117, 126-27 (Miss.1998) (same); In the Matter of Abe A., 56 N.Y.2d 288, 297, 437 N.E.2d 265, 452 N.Y.S.2d 6 (1982) (Schmerber's clear indication test satisfied by facts that would establish probable 8. The court in......
  • People v. Osband, No. S005233
    • United States
    • United States State Supreme Court (California)
    • July 29, 1996
    ...the Fourth Amendment's guaranty. (Commonwealth v. Trigones (1986) 397 Mass. 633, 641, 492 N.E.2d 1146, 1151; Matter of Abe A. (1982) 56 N.Y.2d 288, 290, 437 N.E.2d 265, 266, 452 N.Y.S.2d 6, 7 [criminal suspect]; see also State v. Weigel (1980) 228 Kan. 194, 198, 612 P.2d 636, 642 [hair samp......
  • Patchogue-Medford Congress of Teachers v. Board of Educ. of Patchogue-Medford Union Free School Dist., PATCHOGUE-MEDFORD
    • United States
    • New York Court of Appeals
    • June 9, 1987
    ...48 N.Y.2d 76, 421 N.Y.S.2d 842, 397 N.E.2d 354; People v. Calhoun, 49 N.Y.2d 398, 426 N.Y.S.2d 243, 402 N.E.2d 1145; Matter of Abe A., 56 N.Y.2d 288, 452 N.Y.S.2d 6, 437 N.E.2d 265). As we noted in the Gonzalez case (supra, 39 N.Y.2d at 131, 383 N.Y.S.2d 215, 347 N.E.2d 575): "A bad seizure......
  • Request a trial to view additional results
185 cases
  • Bryant v. Thomas, 16 Civ. 1330
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • August 3, 2017
    ...Post–Robinson New York State decisions, including from the New York Court of Appeals itself, indicate otherwise. See Matter of Abe A., 56 N.Y.2d 288, 299 n.4, 452 N.Y.S.2d 6, 437 N.E.2d 265 (1982) (citing Robinson as support without much elaboration); People v. Macedonio, 42 N.Y.2d 944, 397......
  • State v. Grant, No. 18005.
    • United States
    • Supreme Court of Connecticut
    • April 22, 2008
    ...must be based on probable cause under Schmerber); Turner v. State, 726 So.2d 117, 126-27 (Miss.1998) (same); In the Matter of Abe A., 56 N.Y.2d 288, 297, 437 N.E.2d 265, 452 N.Y.S.2d 6 (1982) (Schmerber's clear indication test satisfied by facts that would establish probable 8. The court in......
  • People v. Osband, No. S005233
    • United States
    • United States State Supreme Court (California)
    • July 29, 1996
    ...the Fourth Amendment's guaranty. (Commonwealth v. Trigones (1986) 397 Mass. 633, 641, 492 N.E.2d 1146, 1151; Matter of Abe A. (1982) 56 N.Y.2d 288, 290, 437 N.E.2d 265, 266, 452 N.Y.S.2d 6, 7 [criminal suspect]; see also State v. Weigel (1980) 228 Kan. 194, 198, 612 P.2d 636, 642 [hair samp......
  • Patchogue-Medford Congress of Teachers v. Board of Educ. of Patchogue-Medford Union Free School Dist., PATCHOGUE-MEDFORD
    • United States
    • New York Court of Appeals
    • June 9, 1987
    ...48 N.Y.2d 76, 421 N.Y.S.2d 842, 397 N.E.2d 354; People v. Calhoun, 49 N.Y.2d 398, 426 N.Y.S.2d 243, 402 N.E.2d 1145; Matter of Abe A., 56 N.Y.2d 288, 452 N.Y.S.2d 6, 437 N.E.2d 265). As we noted in the Gonzalez case (supra, 39 N.Y.2d at 131, 383 N.Y.S.2d 215, 347 N.E.2d 575): "A bad seizure......
  • Request a trial to view additional results

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